Kaur (Migration)

[2019] AATA 1245

Kaur (Migration) [2019] AATA 1245 (9 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sarabjeet Kaur

CASE NUMBER:  1822041

DIBP REFERENCE(S):  BCC2018/3921511 BCC2018/4136083 BCC2018/4136089

MEMBER:Adrienne Millbank

DATE:9 April 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 09 April 2019 at 3:49pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – incorrect information in visa application – accompanying family member Spouse/De facto – not in a genuine spousal relationship – lived separately in different cities for past four years – consideration of discretion – visa granted to secondary applicant based on incorrect information – dishonesty in NOICC response – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 101, 107, 109
Migration Regulations 1994 (Cth), rr 1.15A, 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a Delegate of the Minister for Immigration to cancel the applicant’s Subclass 500 (Student) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a 33 year old Indian national who first arrived in Australia on 13 March 2015 with her declared ‘Spouse/De facto’ as an accompanying family member, secondary applicant, on her then Higher Education Student (573) visa. She and the secondary applicant were granted the Subclass 500 visas on the basis of the same information.

3. The applicant’s Provider Registration International Student Management System (PRISMS) records indicate that she has been enrolled a Graduate Diploma of Business Administration and a Master of Business Administration (MBA) during her four years in this country. Evidence was provided that she successfully completed the Graduate Diploma of Business Administration, an eight-month course, and was awarded the Diploma on 18 December 2017; and that at the time of decision has completed or been awarded credit for three units towards the MBA.

4. The Delegate cancelled the visa under s.109(b) of the Act, on the basis that the applicant was found not meet Public Interest Criterion (PIC) 4020(1) and therefore s.101(b). The Delegate found that the applicant had provided incorrect answers on her application form when she stated that the secondary applicant was her Spouse/De facto partner, and when she declared that the information she had provided in her application was complete and correct in every detail.  Following information obtained by a border official during an interview with the secondary applicant at Brisbane airport on 30 May 2017, the Delegate determined that the applicant was not in a genuine spousal relationship with the secondary applicant, that the secondary applicant was not her spouse or de facto partner, and that she had provided incorrect information in her application.

5. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

6. The applicant appeared before the Tribunal on 20 March 2019, by video from Hobart where she has lived since arriving in Australia, to give evidence and present arguments. The hearing was a joint hearing, by consent, with the secondary applicant whose visa was cancelled on the same grounds and who also applied for review. The secondary applicant, who lives in Brisbane, appeared in person. 

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

10. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

11. In the present matter, the Tribunal is satisfied that the Delegate had reached the necessary state of mind to engage s.107 and that the notice issued on 28 June 2018 under s.107 complied with the statutory requirements.

    Was there non-compliance as described in the s.107 notice?

12. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: in her current visa application the applicant provided as answers to questions on her application form that there were accompanying family members included in her application; that the secondary applicant was her spouse or de facto partner, and that the information provided on her application form and on any attachments to it was complete and correct in every detail.  

13. At the hearing the Tribunal provided the applicant with a copy of a s.375A certificate, which it advised it had determined to be valid insofar as the documents covered by the certificate identified officials who had passed on information adverse to the applicant and who did not want to be identified for reason of personal safety. The Tribunal invited the applicant to comment on its validity. The applicant made no comment on the validity of the certificate.

14. Adopting the procedures in s.359AA of the Act, the Tribunal advised the applicant that the information in the documents covered by the certificate was: that when interviewed by border force officers at Brisbane’s international airport on 30 May 2017 the secondary applicant stated: that he worked in a chicken factory in Brisbane; that he had not seen his wife for nine months, then corrected this after further questioning to more than two years; that his marriage in 2013 was an arranged marriage; that the applicant had been studying in Tasmania for two years but he could not remember what she was studying; that he lived with his brother in Brisbane in a shared house with two other Indian nationals; and that he and his brother had had visa issues before. The information was also that the interviewer found a record of only one conversation, on 13 December 2016, the date of lodgement of the visa application, with the applicant on the secondary applicant’s mobile phone, and this conversation involved conveying basic information about his family members and what he intended to do when he returned to India.

15. The Tribunal further advised the applicant, adopting the procedures of s.359AA of the Act, that it had her PRISMS records, information about all of her and the secondary applicant’s visa applications and outcomes, and their international movement records.  The Tribunal advised the applicant that the information set out above was relevant because it indicated that she was not in a genuine spousal relationship, as defined in the Act, with the secondary applicant, and that the secondary applicant was therefore not her spouse or de facto partner for migration purposes. The Tribunal advised the applicant that subject to her comments in response, the information could lead or contribute to the decision under review being affirmed. The applicant was advised that she could seek an adjournment in order to consider her response. The applicant did not seek an adjournment. She responded that she was in a genuine relationship with the secondary applicant and that she had provided documentary evidence to demonstrate this.

16. In her written response to the Notice of Intention to Consider Cancellation (NOICC), in a submission to the Tribunal and at hearing, the applicant disputed the Delegate’s finding that she and the secondary applicant were not in a genuine spousal relationship. She acknowledged that she and the secondary applicant have lived separately, in Hobart and Brisbane, for the last four years, and that they have not met face-to face since shortly after their arrival in March 2015. She acknowledged that the secondary applicant moved to Brisbane to live with his brother within days of his arrival, but claimed that this was for financial reasons; that he could find paid work in Australia only with the assistance of his brother.

17. The applicant explained that the secondary applicant has not visited her in Hobart since he went to Brisbane to live with his brother for financial reasons, and because she shares lodgings with other Indian women and her landlord will not allow the secondary applicant to stay with her. She claimed that she has not visited the secondary applicant in Brisbane because she has struggled with her studies and family illnesses in India. The Tribunal accepts that the applicant has struggled with her studies; she acknowledged that she has completed only an 8-month long Graduate Diploma-level course in four years in Australia. The Tribunal does not accept however that the applicant’s struggle to cope with her studies is a credible reason for the parties not being together. The Tribunal found the applicant’s choice to ensconce herself in lodgings in Hobart where the secondary applicant was not allowed to visit or stay with her to be not congruent with her claim to be in a spousal relationship with him.

18. The applicant explained that she could provide no evidence of communicating with the secondary applicant before his airport interview because she didn’t know she needed to collect it; because the secondary applicant was working graveyard shifts as a cleaner at a poultry factory and so couldn’t call her; and because the secondary applicant didn’t call for fear of disturbing her. The applicant’s and the secondary applicant’s responses on such issues at hearing were identical to each other’s and identical to their written statements. They appeared rehearsed and were unconvincing.

19. The Tribunal notes that the applicant would have provided evidence at the time of application of access to finances sufficient to support herself and the secondary applicant, and to pay her tuition fees, and does not accept that the secondary applicant had to live and work many thousands of kilometres away in order to support her financially. The Tribunal considers that if the secondary applicant was an accompanying family member Spouse/De facto of the applicant, they would have lived together.

20. The applicant claimed, and provided evidence, that she requested a release from her course provider in Hobart, which was refused because she had not studied in her enrolled course for 6 months.  She acknowledged at hearing that she in fact sought to transfer to a provider in Melbourne, not Brisbane, as she had claimed in her response to the NOICC. She explained that the reason she sought to transfer to a provider in Melbourne rather than Brisbane was because ‘an agent’ organised the proposed transfer without her knowledge. She also claimed that the reason she originally enrolled with a Tasmanian provider and has stayed in Tasmania is because an agent in India organised the enrolment and visas and she didn’t want to risk anything by moving to Queensland.

21. The applicant made no comment when the Tribunal questioned the secondary applicant as to whether he had previously applied unsuccessfully for a Subclass 457 visa, but did not dispute the secondary applicant’s testimony that this application, which he claimed he could barely remember, was organised by the same agent who organised the student visas and that this agent was responsible for a false document provided for the current visa application, namely, the secondary applicant’s genuine temporary entrant statement. The applicant advised that this statement was a fabrication; that the secondary applicant never had any intention, as claimed in the statement, to work on mango, banana and cane farms in northern Queensland with view to improving farming techniques on ancestral farmland owned by his family in India.

22. The applicant acknowledged that she has travelled to India five times without the secondary applicant, and that he has travelled to India once without her. She claimed that they travelled only for reasons of their respective families’ crises and emergencies, and that they were too busy working and studying and in any event could not afford to travel home to India together, or to travel domestically to see each other. This claim is not congruent with the applicant’s claim that the secondary applicant is her accompanying family member Spouse/De facto.

23. The Tribunal asked the parties why, if they were unwillingly separated as claimed because of their financial and study circumstances and the peculiar arrangements made by their agent in India, they hadn’t moved in with each other after the applicant’s enrolment was cancelled and after they both lost work rights.  The applicant maintained that they have continued to live separately for financial reasons; because the secondary applicant could live for free with his brother; because she didn’t want to risk losing her lodgings in Tasmania; and because she wanted to be near her course provider for when she could resume her studies. No evidence was provided to support the applicant’s claims that the secondary applicant has been unable in the last four years to obtain employment in Tasmania even such as a cleaner in a chicken factory working the night shift. No evidence was provided that accommodation is so hard to obtain in Tasmania that the applicant has not dared during four years to risk losing a shared lodging where her husband is not allowed to stay. The Tribunal found these claims implausible.

24. The Tribunal notes that the applicant was able to finance five trips to India, but none with or to see the secondary applicant in Brisbane. In summary, the Tribunal found the evidence provided by the applicant in support of her claim to be in a genuine relationship and forcibly separated for four years from the secondary applicant by financial, study and lodging constraints, and by meek acceptance of agents’ arrangements, unconvincing.

25. The Tribunal put to the applicant several times during the hearing that having considered her circumstances and explanations as to why she lived separately from the secondary applicant, it found it implausible that, if they were in a genuine spousal relationship, they would not have lived with each other in Australia regardless, or because, of financial and study challenges.  The Tribunal invited the applicant to consider her response. The applicant in response maintained that her marriage albeit arranged is genuine; that she lived with the secondary applicant in India after the marriage (she moved into the secondary applicant’s parents’ house); and that it is her intention, after completing her MBA in Tasmania, to return to India to live with the secondary applicant. The Tribunal notes that no evidence beyond the parties’ claims was provided that the parties lived together as a married couple in India.

26. The applicant provided to the Tribunal a large number of documents, including a copy of her and the secondary applicant’s marriage certificate certifying that they married in Jalandhar, Punjab, on 11 August 2013. She provided photos of the wedding and affidavits from family members in support of her claim that the secondary applicant is her spouse or de facto family member. The Tribunal has assessed the applicant’s claim against the definition of spouse under s.5F of the Act and in accordance with matters to be considered under r.1.15A of the Regulations.

27. The Tribunal accepts on the evidence provided that the applicants married. For the reasons discussed below, the Tribunal does not find that they were in a genuine spousal relationship at the time of application.

28. Regarding the parties’ financial arrangements, no evidence was provided and no claim was made that they have any assets in common; or joint liabilities; or that they have shared day to day expenses. Evidence was provided in the form of statements from bank accounts that the secondary applicant deposited amounts from several hundred to several thousand dollars, irregularly, into an account in joint names which has been used by the applicant in Hobart. When asked why he deposited money into this account, the secondary applicant stated that it was to pay for the applicant’s rent and tuition, because she is his wife. The Tribunal asked the secondary applicant why, as a husband, he paid for accommodation for his wife where he was not allowed to stay. He did not respond to this question, other than to state that the applicant lived with other Indian women and was studying in Tasmania. The Tribunal accepts that money has changed hands.

29. Regarding the nature of the household, the applicant acknowledged at hearing that she and the secondary applicant have not established a joint household. She provided evidence that she booked and paid for, in her own name, a motel room in Hobart, for two nights, from 13 to 15 March 2015.  The Tribunal does not accept that this shows that the parties cohabitated as a spousal couple.

30. No claim was made or evidence provided that the applicant and the secondary applicant have functioned socially and are recognised and related to as a couple in Australia. The Tribunal accepts that members of the parties’ families in India have provided affidavits and statutory declarations declaring that they know them to have married, and that these family members support the restoration of the applicant’s Student visa. The Tribunal notes that those who provided written declarations have not observed or socialised with the parties as a couple at any time during the last four years.

31. Regarding the nature of the parties’ commitment to the relationship and each other, the Tribunal put to the parties that it found it difficult to accept that if they were in a genuine, committed relationship, they would have not have lived together in Australia so as to provide companionship and emotional support to each other. The Tribunal pointed out that that was the point and purpose of the accompanying family member secondary applicant’s visa. The parties responded by repeating identical explanations for their separate living arrangements that, as noted, appeared rehearsed.

32. The Tribunal accepts, from the evidence provided, the parties have communicated with each other via WhatsApp, but notes the evidence shows that the parties communicated regularly only after the secondary applicant was questioned about his visa and relationship at Brisbane airport. The Tribunal does not accept the applicant’s claim, repeated in supporting witnesses’ written statements, that the secondary applicant’s failure to phone her regularly before his interview with a border official demonstrates his thoughtfulness as a spouse, in that he was working a night shift to support her and unwilling to distract her while she struggled with studies and family crises. These explanations are unconvincing.

33. The parties claim to have been married for over five years, but provided no convincing evidence beyond their claims that they have ever lived together. They acknowledged that they have lived separately for over four years in Australia. The applicant was vague when asked about her long-term plans. She claimed that when she completes her MBA she intends to live with the secondary applicant and that she might start a business in India. She stated that she has not as yet given any thought as to the sort of business she might start. The Tribunal is not satisfied on the basis of the evidence provided that the applicant and the secondary applicant have been in a spousal relationship for five years, or that they see the relationship as long-term.

1. Having considered the evidence and circumstances of the applicant and the secondary applicant, the Tribunal is not satisfied that they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; that the relationship between them is genuine and continuing; and that they live together or do not live separately and apart on a permanent basis.

2. Therefore the Tribunal does not find that the secondary applicant is the family member Spouse/De facto of the applicant, as claimed on her application form. The Tribunal further finds that the applicant provided incorrect information when she declared on her application form that the information she provided was correct in every detail.

3. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

4. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

5. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

   ·     the correct information

   ·     the content of the genuine document (if any)

   ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

   ·     the circumstances in which the non-compliance occurred

   ·     the present circumstances of the visa holder

   ·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

   ·     any other instances of non-compliance by the visa holder known to the Minister

   ·     the time that has elapsed since the non-compliance

   ·     any breaches of the law since the non-compliance and the seriousness of those breaches

   ·     any contribution made by the holder to the community.

6. The correct information was that the secondary applicant was not the Spouse/De facto partner of the applicant. The decision to grant the visa to the secondary applicant was based on incorrect information, when the applicant provided incorrect information in her application form. The circumstances of the visa holder at the time of decision is that both she and the secondary applicant remain living separately, in Brisbane and Hobart, on Bridging visas, without work or study rights, and without means of support apart from family members.

7. There is no information before the Tribunal to indicate that the applicant has not complied with other conditions of her visas, but there is information which indicates that the applicant was not honest in her NOICC response. In this, the applicant claimed she sought a release from her course provider in Tasmania so she could be with the secondary applicant in Brisbane. However, the evidence she provided did not support her claims: the offer of enrolment she had obtained (for a Diploma of Hospitality Management at RGIT Australia), was from a provider with campuses only in Melbourne and Hobart.  

8. Over two years have elapsed since the applicant provided the incorrect information in her Student (Subclass 500) visa application. There is no information before the Tribunal regarding non-compliance by the applicant with other visa conditions, and there is no information before the Tribunal to indicate that the applicant has otherwise breached Australian law including migration law. No claim was made by the applicant that she has made a contribution, beyond a donation to Red Cross, to the community.

9. Considered overall, the prescribed circumstances do not weigh in favour of the applicant.

10. While the above are factors that must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

11. While cancellation would result in the applicant becoming unlawful and subject to detention, there is no information before the Tribunal to indicate that she would not be able to apply for and be granted another Bridging E visa while organising her departure. The applicant may be subject to s. 48 of the Act preventing her from applying for further visas while in Australia, and she may also be affected by Public Interest Criterion 4013 limiting the granting of a further temporary visa for a specified period. The Tribunal considers that these are the intended consequences in such a case.

12. There would be no consequential cancellations. As noted, the secondary applicant’s visa was separately cancelled.

13. The applicant claimed, in terms of hardship, that she will feel as if she has wasted her time in Australia if she has to return home without an MBA. The Tribunal notes that the applicant has struggled with study at this level; that her study history suggests she may not have the ability or commitment to obtain this qualification; and that no evidence was provided that she has any employment prospects or plans that rely on the qualification. The Tribunal nevertheless accepts that the applicant may suffer some financial and psychological hardship from having to return to India without this qualification.

14. There is no information before the Tribunal and the applicant did not claim that any international obligations would be breached as a result of the cancellation. No other relevant matters were raised by the applicant or otherwise before the Tribunal.

15. The Tribunal does not consider the above factors when considered overall weigh significantly against the cancellation.

16. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. While accepting that the applicant may suffer some hardship from not completing her studies, the Tribunal considers the reasons to cancel the visa outweigh the reasons not to cancel. Having had regard to the relevant circumstances, the Tribunal has concluded that the visa should be cancelled.

    DECISION

17. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Adrienne Millbank
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)      purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)      giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)      visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)      deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.